Land and Environment Court New South Wales Medium Neutral Citation: Funnell v Blayney Shire Council [2020] NSWLEC 170 Hearing dates: 4 December 2020 Date of orders: 4 December 2020 Decision date: 04 December 2020 Jurisdiction: Class 1 Before: Pepper J Decision: See orders at [53]. Catchwords: PROCEDURE: application for a stay of a prevention notice pending the outcome of Class 1 proceedings – applicable principles for the granting of a stay – arguable cause of action – balance of convenience favours granting of stay subject to conditions. Legislation Cited: Companion Animals Act 1998 s 32A Land and Environment Court Act 1979 ss 22, 23 Protection of the Operations Act 1997 ss 95, 96(1)-(2) Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Chen v Lym International [2009] NSWCA 121 Collier v Country Women's Association of New South Wales [2017] NSWCA 303 Crosseyed Management Pty Ltd v Parramatta City Council [2013] NSWLEC 53 CVA Apartments Pty Ltd v Burwood Council; Marsden Hotel Burwood Pty Ltd v Burwood Council; The Marsden Hotel Pty Ltd v Burwood Council [2020] NSWLEC 11 Eniflat Pty Limited; Karlos v Tweed Shire Council [2019] NSWLEC 150 Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737 Lawrence v Gunner [2015] NSWCA 322 Malass v Strathfield Municipal Council [2020] NSWLEC 168 Meriden School v Pedavoli [2009] NSWLEC 118 Meriden School v Pedavoli [2009] NSWLEC 183 Snowy Monaro Regional Council v Cmunt (No 3) [2018] NSWLEC 175 Sydney Tools Pty Ltd v Oxford [2018] NSWLEC 134 Wallis v Rudek [2020] NSWCA 61 Yeshiva Synagogue Inc v Karimbla Properties (No 10) Pty Ltd [2017] NSWCA 331 Young v King (No 10) [2016] NSWLEC 70 Category: Procedural and other rulings Parties: Alita Funnell (First Applicant) Keith Selten (Second Applicant) Blayney Shire Council (Respondent) Representation: Counsel: T Cork (solicitor) (Applicant) J Reid (Respondent) Solicitors: McPhee Kelshaw Solicitors and Conveyancers (Applicant) Crennan Legal Pty Ltd (Respondent) File Number(s): 2020/230553 Judgment The Applicants Are Issued With a Prevention Notice Concerning the Keeping of Greyhounds 1. In this notice of motion the applicants, Alita Funnell and Keith Selten, are seeking a stay of a prevention notice issued by the respondent, Blayney Shire Council ("the Council"), on 21 July 2020, pending determination of their Class 1 appeal seeking to set the notice aside. 2. The graven of the prevention notice, the Class 1 proceedings, and of this application, is the noise allegedly being made by greyhounds housed on the applicants' property. 3. The prevention notice was issued consequent upon complaints from the next-door neighbours, Donna Johnston and her partner (there were earlier complaints by other persons but these pre-dated 2019 and are irrelevant for the purpose of both the prevention notice and this application). 4. The prevention notice was issued pursuant to s 96(1) and (2) of the Protection of the Operations Act 1997 ("POEOA"): 96 Preventive action (1) Application of section This section applies when the appropriate regulatory authority reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner at any premises or by any person (otherwise than at premises). (2) Prevention notices The appropriate regulatory authority may, by notice in writing, do either or both of the following— (a) direct the occupier of the premises, (b) direct the person carrying on the activity (whether or not at premises), to take such action, as is specified in the notice and within such period (if any) as is specified in the notice, to ensure that the activity is carried on in future in an environmentally satisfactory manner. 1. An activity is carried out in an "environmentally unsatisfactory manner" when (s 95 of the POEOA): 95 Meaning of environmentally unsatisfactory manner For the purposes of this Part an activity is carried on in an environmentally unsatisfactory manner if- (a) it is carried on in contravention of, or in a manner that is likely to lead to a contravention of, this Act, the regulations or a condition attached to an environment protection licence (including a condition of a surrender of a licence) or an exemption given under this Act or the regulations, or (b) it causes, or is likely to cause, a pollution incident, or (c) it is not carried on by such practicable means as may be necessary to prevent, control or minimise pollution, the emission of any noise or the generation of waste, or (d) it is not carried on in accordance with good environmental practice. 1. The term "offensive noise" is defined in the Dictionary of the POEOA as follows: offensive noise means noise— (a) that, by reason of its level, nature, character or quality, or the time at which it is made, or any other circumstances— (i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or (ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or (b) that is of a level, nature, character or quality prescribed by the regulations or that is made at a time, or in other circumstances, prescribed by the regulations. 1. The prevention notice was in the following terms (emphasis added): DIRECTION TO TAKE PREVENTATIVE ACTION Issued under Section 96 of the PROTECTION OF THE ENVIRONMENT OPERATIONS ACT 1997 PREVENTION NOTICE To: Keith John Selten & Alita Ann Funnell Premises: 73 Somers Lane Mandurama NSW 2792 Date of Issue: 21 July 2020 1. BACKGROUND 1.1 During the first half of 2016 Blayney Shire Council ("Council") received complaints from persons living in the vicinity of 73 Somers Lane, Mandurama ("the premises") regarding the noise created by dogs barking. 1.2 Council identified that in the order of 25 greyhounds were housed on the premises, in a shed and with the use of "runs". 1.3 On 27 May 2016 a Development Application was lodged by the owners of the premises for an Animal Training Facility. Ultimately this application was refused by Council on 21 December 2016 with concerns about noise being key reasons for the refusal. 1.4 Council issued a Notice of Intention to Issue an Order and then an Order requiring the use of the premises to house and train greyhounds to cease. Council's Order was dated 14 March 2018. This order was not complied with. 1.5 On 6 February 2019 Council commenced civil enforcement proceedings in Class 4 of the Land and Environment Court seeking a declaration (and associated orders) that the keeping of dogs in the number and in the manner in which they are kept on the premises is unlawful. 1.6 In the course of these proceedings an agreement was reached between the Council and the owners of the greyhounds to insulate the shed containing the dogs to reduce noise and to have the greyhounds progressively removed from the premises. 1.7 This agreement was not adhered to, though in subsequent months there has been a reduction in the number of Greyhounds being kept at the premises. 1.8 The Class 4 proceedings have been discontinued. 1.9 Significant noise issues continue to be reported by the neighbours. 1.10 The greyhounds bark, yelp, whine and howl during the day and night causing disturbance at nearby residences. The noise disturbs the sleep of neighbours and interferes with their enjoyment of their home and land. 1.11 Council has determined that the noise being omitted from the premises constitutes 'offensive noise' within the meaning of the Protection of the Environment Operations Act 1997: "Offensive noise means noise: (a) that, by reason of its level, nature, character or quality, or the time at which it is made, or any other circumstances: (i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or (ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or (b) that is of a level, nature, character or quality prescribed by the regulations or that is made at a time, or in other circumstances, prescribed by the regulations." 1.12 In this Notice the following terms are defined: "the kennel shed" means the coloured metal shed located near the northern boundary of the premises in which greyhound dogs are currently kennelled. "the outside yards" means the fenced dog enclosures each with a dog kennel located to the south of the kennel shed. "slip land training track" means the existing greyhound training track adjacent to the eastern boundary used for whistle training of greyhounds. 2. DIRECTION TO TAKE PREVENTATIVE ACTION Blayney Shire Council directs Keith John Selten & Alita Ann Funnell as the occupiers of 73 Sommers Lane, Mandurama to take the following actions: 2.1 Within 42 days of the Prevention Notice issue date the occupiers shall carry out insulation/noise attenuation of the kennel shed as recommended by a suitably qualified acoustic engineer. 2.2 Within 7 days of the Prevention Notice issue date the occupiers are to engage a suitably qualified consultant to assess the noise impacts on residents living in the vicinity of the premises. 2.3 From the Prevention Notice issue date the occupiers shall keep no more than 2 domestic dogs at the premises and these may not be greyhounds. 2.4 Subject to clause 2.5, from 3 months of the Prevention Notice issue date, the occupiers shall keep no more than 6 greyhound dogs at the premises, reducing the number of greyhound dogs at the rate of at least 1 per calendar month. 2.5 It is acknowledged that: 2.5.1 the occupiers will communicate with the Greyhound Welfare and Integrity Commission ("GWIC") concerning the reduction in the number of greyhound dogs held on the premises by the occupiers; 2.5.2 Blayney Shire Council will itself liase with the GWIC, and will emphasise to the GWIC the urgency of re-homing greyhound dogs now held on the premises; 2.5.3 The occupiers must progressively reduce the number of dogs held on the premises, but if the GWIC re-homing program may accommodate a number of dogs at one time, rather than allowing a reduction in the number of dogs by one each month the numbers are to be reduced accordingly; 2.5.4 the GWIC must be notified of any proposal to euthanase a greyhound dog, and must give approval for any such proposal; 2.5.5 the occupiers will at the end of each month inform Council of their progress in reducing the number of greyhound dogs held at the premises. 2.6 Within 7 days of the Prevention Notice issue date the occupiers shall keep all greyhound dogs in the following manner:- (a) all greyhound dogs are to be kept within the kennel shed from 6pm to 5:30am. (b) Between 5:30am and 6:15am the greyhound dogs may be released no more than 1 at a time into each of the two yards to the north-west of the kennel shed. (c) no more than 4 greyhound dogs at any one time may be outside the kennel shed from 7am to 5pm, provided also that when outside the kennel shed, they are located in the outside yards. (d) In the period from 5pm to 6pm, greyhound dogs may be walked on the property, provided that no more than 6 greyhound dogs are walked at any one time and they are on the leash. (e) In the event that a greyhound dog produces a litter of pups, then the pups shall be kept within the kennel shed at all times and shall not be kept at the premises from 3 months after birth. (f) The slip lane training track shall cease to be used. (g) Apart from ingress and egress, both doors of the kennel shed shall remain closed at all times. 2.7 From the Prevention Notice issue date the occupiers shall:- (a) Only keep dogs owned by them at the premises. (b) Maintain a daily diary of the number of dogs on the premises. (c) Record the birth of any dogs. (d) Make the premises and the records referred to in (b) and (c) above available for inspection by Council at any reasonable time. (e) Provide a copy of the records referred to in (b) and (c) to Council at the end of every calendar month. 2.8 Within 21 days of the Prevention Notice issue date the suitably qualified consultant (as referred to in clause 2.2) is to provide a Noise Impact Assessment report to Council including recommendations to control any impacts on residents within the vicinity of the premises. The report should give consideration to the requirements and standards relevant to the assessment of noise in New South Wales. 2.9 Within 60 days of the Prevention Notice issue date – the same consultant is to provide a Noise Management Plan to Blayney Shire Council for approval detailing recommended controls needing to be implemented to minimise impacts on residents living in the vicinity of the premises: Please note: Council will endeavour to respond within 7 days of the receipt of the Noise Impact Assessment Report and the Noise Management Plan. 2.10 Immediately on receiving written notice from Council regarding approval of the Noise Management Plan – the approved Noise and Management Plan is to be implemented. 1. As defined in the POEOA, the term "offensive noise" is determined in qualitative, and not strictly quantitative, terms (Meriden School v Pedavoli [2009] NSWLEC 183 at [17] per Pain J). Excessive noise will not necessarily constitute offensive noise for the purposes of the Act (Meriden School v Pedavoli [2009] NSWLEC 118 at [7] per Sheahan J). Furthermore, the test for any harm resulting from noise is objective and not subjective, that is, whether the noise from the impugned activity is harmful in an objective sense to the reasonable person (Pedavoli at [53] per Pain J). 2. The applicants own a 5.5 ha property at 73 Somers Lane, Mandurama, NSW ("the property"). They have lived there since 2016. The applicants bought the property from Johnston who owns and resides at the adjoining property. At the time of the sale, the applicants informed Johnston that they planned to keep and train greyhounds on the property for the purpose of racing them. 3. The applicants currently house nine greyhound dogs on the property (down from a maximum of 26). They also keep another three dogs and various other animals on the property. It is only the dogs that are the subject of the prevention notice. 4. After the applicants moved into the property, the Council informed them that if they wished to continue housing and training the greyhounds they would need development consent. A development application was lodged by the applicants on 27 May 2016. It was refused by the Council on 21 December 2016. A review of that determination was sought, which was refused for the second time by the Council on 20 November 2017. 5. On 6 February 2019 the Council commenced Class 4 proceedings seeking a declaration that the keeping of dogs in the number and manner by which the applicants kept them on the property was unlawful. 6. Pursuant to mediation, the proceedings were resolved with the resolution being documented in an agreement dated 7 June 2019. Because the applicants were having difficulty complying with the terms of the agreement, they decided to cease training and racing greyhounds and to retire the dogs. As a consequence, the Council discontinued the Class 4 proceedings on 8 January 2020 on the basis that the agreement governed a set of affairs that no longer existed. 7. In resisting the stay, the Council relied upon an affidavit of Mark Dicker, the Director Planning and Environmental Services at the Council, sworn 26 November 2020, a great deal of which was of marginal relevance to the issues to be determined on the application for a stay. 8. For present purposes, Dicker deposed that in February and April 2020 noise monitoring equipment supplied by NoiseNet was set up by the Council at the Johnston property. More specifically, noise was monitored between 11:00am on 5 February to 10:00am on 20 February 2020 and between 11:00am on 16 April to 11:00 am on 30 April 2020. Noise from the greyhounds was detected. 9. However, reports by NoiseNet dated 2 March and 8 May 2020, respectively, indicated the following: 1. that during the monitoring in February 2020, there "were no instances of criteria exceedance during the day" and only two instances of exceedance at night (at 3:00 am and 3:30 am). Moreover, that "barking during the day time period was typically low, with occasional isolated hours of approximately 1 minute of barking"; and 2. that during the monitoring in April 2020 there was "one instance where barking exceeded day time criteria and six instances of exceeding night time criteria" (one at 8:00pm and five between 10:00pm to 2:30 am). 1. The NoiseNet reports did not engage with the concept of "offensive noise" as required under the POEOA in arriving at their findings. Rather, the reports were premised on the criteria for nuisance barking under s 32A of the Companion Animals Act 1998. No explanation was given as to why this criteria was selected by NoiseNet. 2. In his affidavit, Dicker noted his observations made during six visits to the property between August and October 2020 (the most recent occurring on 22 October 2020). He stated that, in his opinion, the measures that had been taken in response to the prevention notice have reduced the noise complained of by Johnston and her partner emanating from the property. But he cautioned that "management of those behaviours appears to require consistent attention". 3. According to Funnell, in an affidavit sworn on 17 November 2020 by her in support of the granting of a stay, the prevention notice was served without warning. No opportunity has been given to the applicants to discuss the issue of the noise with the Council or Johnston. As Funnell notes in her affidavit, "greyhounds are animals and they do make some noise". 4. The adjoining neighbours have complained on multiple occasions to the Council that the noise is unacceptable. In an affidavit affirmed 27 November 2020, Johnston deposed to the considerable disturbance caused by the greyhounds. The dwelling house on the Johnston's property is located approximately 200 to 250m from the shed on the subject property in which the greyhounds are housed. Johnston deposed to the fact that the noise from the dogs prevents her from enjoying the amenity of her house both day and night. Her sleep has been seriously disturbed. In short, "it is impossible to enjoy our home" because of the noise emanating from the greyhounds. 5. As a result of rehoming, the number of greyhounds kept at the property has decreased. It is anticipated that one greyhound will be rehomed by Greyhound Rescue per calendar month. Moreover, since the prevention notice was issued, sections of the greyhound shed housing the dogs have been lined to afford greater acoustic protection. 6. The applicants have also changed their routine in relation to the care and management of the greyhounds resulting in a reduction in the number of greyhounds released at the same time from the shed where they are kept; a decrease in the amount of time that greyhounds spend outside of the shed; and a decrease in the number of periods during which the dogs are let out of the shed. Furthermore, since the prevention notice was issued the greyhounds are no longer taken out of the shed together at the same time. 7. It was therefore not in dispute that since the prevention notice was issued there has been a reduction in the frequency and volume of noise coming from the greyhounds on the property. 8. The applicants deny that the noise is offensive. They relied in support of this submission on an affidavit of Tom Harper, an acoustic and vibration consultant engaged by Acoustik, sworn 13 November 2020, which relevantly attached an acoustic report dated 7 October 2020. In that report, he concluded that: Acoustik was engaged by the Selten Family to provide an acoustic report in response to a Prevention Notice issued by Blaney Shire Council on the 21 July 2020 regarding noise emissions from Greyhounds kept at their property at 73 Somers Lane, Mandurama. Acoustik have measured greyhound noise levels from greyhounds located in the kennel shed during the night and evening periods and used measurement data from a 2017 DA Report also authored by Acoustik for the application of a Greyhound training facility. Using the measured noise levels and comparing to the intrusive noise criteria and the offensive noise test questions in the Noise Guide for Local Government Acoustik do not support the finding that the greyhound noise is offensive or that the greyhounds are nuisance dogs as defined in the Companion Animals Act 1998. 1. These conclusions appear to be based on measurement criteria that are somewhat inconsistent with those contained in a second peer review dated 11 September 2017, of earlier acoustic evidence prepared by Acoustik. Limited weight was placed on the second peer review given that it not only predates this application and the prevention notice, it was premised upon 26 dogs being kept on the property. 2. The applicants seek a stay of the prevention notice because: 1. it is emotionally and financially difficult to rehome the greyhounds. They consider them to be their family pets; if not family members. They do not want to surrender them to the RSPCA or some other organisation where they may be killed, as the Council apparently offered to do; 2. it is difficult to comply with condition 2.6(b) of the prevention notice insofar as it restricts the number of dogs to one dog per yard to be let out in the mornings to the emptying yards to the north-west. This has the effect of increasing the noise because the remaining dogs bark. In addition, the process takes much longer than if the greyhounds are all let out at the same time; 3. it is also difficult to comply with condition 2.6(a) which mandates that the greyhounds be inside by 6pm. It is still hot at this time in the evening at various months of the year. Moreover, the applicants' respective employment obligations mean that often they cannot be home in time to allow the dogs to be exercised prior to 6pm; 4. none of the remaining greyhounds on the property are registered for racing. However, the applicants may wish to race greyhounds in the future. Condition 2.6(f) of the prevention notice does not allow the use of the slip track which is needed to train the dogs for this purpose. The applicants would also like the retired greyhounds to use the slip track occasionally. This will improve the dogs' behaviour inside the shed because they will be tired from their run; and 5. condition 2.6(g) of the prevention notice does not allow the shed doors to be generally open. This creates a welfare issue for the dogs in terms of airflow and fresh air in the shed on warm days and possibly contravenes the NSW Greyhound Welfare Code of Practice with respect to adequate ventilation ("the Code of Practice"). The Class 1 Appeal 1. The Class 1 appeal seeks to set aside the prevention notice. Statements of Facts and Contentions have been filed by the parties. 2. According to the applicants, the prevention notice ought to be set aside on the basis that: 1. the evidence relied upon by the Council does not establish that the greyhounds were the source of any "offensive noise" under the POEOA; 2. on the contrary, the expert evidence of Harper establishes that the noise emitted by the dogs does not constitute "offensive noise" under that Act; 3. no procedural fairness was given to the applicants prior to the issuing of the prevention notice in contravention of the Council's Enforcement Policy; 4. the Council did not follow the NSW EPA's guidelines for the issuing of prevention notices under the POEOA insofar as it did not afford procedural fairness to the applicants prior to issuing the notice; 5. the Council did not follow the NSW EPA's Noise Guide for Local Government ("Noise Guide") which provides information about dealing specifically with noise from animals, such as barking dogs. The Council did not follow the Noise Guide in assessing the level of noise and in selecting the acoustic recording equipment; 6. the prevention notice does not address the welfare of the dogs on the property, especially with respect to the Code of Practice in relation to the application of condition 2.6 of the notice; 7. the notice seeks to regulate three dogs on the property about which no complaint has been made; 8. the prevention notice had been issued on the basis of complaints from the residents of one property only from 2019 onwards, namely, Johnson and her partner; 9. the mitigation measures taken by the applicants since the prevention notice was issued have fully addressed the complaints made by restricting the number of greyhounds on the property; by restricting the time the greyhounds spend outdoors; and by lining the kennel shed with acoustic insulation from 1 August 2020. 1. In summary, in light of the mitigation measures now effected by the applicants, the notice "is an attempt by the Council to unreasonably restrict the use of the Applicants' property". 2. By contrast, the Council contends that steps have neither been taken to reduce the number of greyhounds kept on the property nor to insulate or line the shed. Moreover, the dogs have been kept outside and allowed to bark and whine. In summary, the greyhounds kept on the property create noise which is disturbing the amenity of the persons living on the adjoining property. 3. The appeal has not yet been listed for hearing. Principles Applicable to the Granting of a Stay in Class 1 1. The power to grant a stay of the prevention notice is contained in ss 22 and 23 of the Land and Environment Court Act 1979 ("the LEC Act"): 22 Determination of matter completely and finally The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided. 23 Making of orders The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. 1. Section 22 was relied upon as the source of the Court's power to grant a stay in Crosseyed Management Pty Ltd v Parramatta City Council [2013] NSWLEC 53 (at [3] per Craig J). In Eniflat Pty Limited; Karlos v Tweed Shire Council [2019] NSWLEC 150 Pain J (at [2]) accepted that the Court had the power to grant a stay in Class 1 proceedings. 2. Without having to decide whether either or both provisions confer power on the Court to grant a stay in Class 1 appeals, I accept that the Court has the requisite power to do so. 3. The principles applicable to the grant of a stay pending an appeal were stated by the Court in Sydney Tools Pty Ltd v Oxford [2018] NSWLEC 134 (at [34]-[39]). More recently they were articulated in CVA Apartments Pty Ltd v Burwood Council; Marsden Hotel Burwood Pty Ltd v Burwood Council; The Marsden Hotel Pty Ltd v Burwood Council [2020] NSWLEC 11 (at [40]-[44]). See most recently Wallis v Rudek [2020] NSWCA 61 (at [46] per White JA) and Malass v Strathfield Municipal Council [2020] NSWLEC 168 (at [42]). 4. The principles in relation to whether a stay of orders the subject of an appeal should be granted were summarised in the seminal case of Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 (at 693-695). They were expanded upon by Beazley JA (as her Honour then was) in Chen v Lym International [2009] NSWCA 121 per Beazley JA at [12]-[15], by Handley, Sheller and Ipp JJA in Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737 (at [17]-[20]), and in this Court by Sheahan J in Young v King (No 10) [2016] NSWLEC 70 (at [24]-[25]). 5. As espoused by Gleeson JA in Lawrence v Gunner [2015] NSWCA 322 they are as follows (at [10]-[15]): 10 The principles to be applied when exercising the Court's power to grant a stay pending an appeal are well known: see Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695, and Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; 55 NSWLR 737 (Kalifair) at [17]-[20]. 11 A successful party is prima facie entitled to the fruits of his or her judgment, but a stay may be granted where an applicant demonstrates an appropriate case to warrant the exercise of discretion in its favour. The mere filing of the appeal is insufficient, of itself, to demonstrate such a case. Usually it is demonstrated by showing that there are arguable grounds of appeal and that there is a risk that if money is paid it will be unable to be recovered if the appeal succeeds, or by demonstrating that unless a stay is granted the appeal will be rendered nugatory: TCN Channel 9 Pty Ltd v Antoniadis [No 2] [1999] NSWCA 104; 48 NSWLR 381 at [15]. The Court will weigh considerations such as the balance of convenience and the competing rights of the parties. 12 It is for the applicant to demonstrate a proper basis for a stay that will be fair as between the respective interests of the parties: see Alexander v Cambridge Credit Corporation Ltd at 694; Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 at [5]. 13 It is appropriate to consider first whether the appeal raises a serious question to be tried, in the sense of arguable grounds, and if so, where the balance of convenience lies: Kalifair at [18]; Vaughan v Dawson [2008] NSWCA 169 at [17] (Campbell JA). 14 As already mentioned, the notice of appeal is not particularly informative. The requirements of the rules concerning a notice of appeal are set out in UCPR r 51.18. The notice is required to state, briefly but specifically, the grounds relied upon in support of the appeal. In addition, subrule (2) requires the appellant to also specify any material facts that the appellant contends that the court below should, or should not, have found. Here the notice of appeal does not comply with these requirements. 15 As Campbell JA observed in Vaughan v Dawson [2008] NSWCA 169 at [22], having a notice of appeal that does not comply with the rules is an unpromising start for proving there is a serious question about whether the appeal will succeed. Nonetheless, Campbell JA accepted that it may not be fatal if there is reason to believe that the notice of appeal could be amended to state properly arguable grounds. This requires one to consider on a broader basis whether the appellants have shown a prospect of successfully appealing from the judgment. I adopt that approach here. 1. They were condensed further and applied by Gleeson JA (after referring to and endorsing Alexander and Kalifair) in Collier v Country Women's Association of New South Wales [2017] NSWCA 303 (at [32]): 32 It is not necessary to refer to those principles in any detail other than to note that in such cases, the successful party is prima facie entitled to the benefit of a judgment, but a stay may be granted where an applicant demonstrates an appropriate case to warrant the exercise of discretion in its favour. The mere filing of the appeal is insufficient, of itself, to demonstrate such a case. Usually it is demonstrated by showing that there are arguable grounds of appeal, and that there is a significant risk that if money is paid it will be unable to be recovered if the appeal succeeds; or by demonstrating that unless a stay is granted the appeal will be rendered nugatory: TCN Channel 9 Pty Limited v Antoniadis (No 2) (1999) 48 NSWLR 381 at 385 [15]. It is for the applicant to demonstrate a proper basis for a stay that will be fair as between the respective interests of the parties: see Alexander v Cambridge Credit Corporation Ltd at 694; Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 at [2]. 1. In relation to the strength of the appeal, Basten JA opined as follows in Yeshiva Synagogue Inc v Karimbla Properties (No 10) Pty Ltd [2017] NSWCA 331 (at [17]-[18]): 17 So far as the last matter is concerned, the inquiry is usually constrained to a determination whether the appeal is reasonably arguable. With respect to the prospects of success on an appeal, the Court stated in Alexander v Cambridge Credit Corporation Ltd (Receivers appointed): "… although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interests of the parties, from making some preliminary assessment about whether the appellant has an arguable case." 18 The grammatical structure of this statement is not entirely clear, but the availability of "some preliminary assessment" has generally been regarded as going to the merits of granting a stay or declining to do so, and not merely to the terms on which it may be granted. 1. Finally, in Snowy Monaro Regional Council v Cmunt (No 3) [2018] NSWLEC 175 the Court said (at [17]): 17 The principles may be relevantly summarised as follows: (a) first, it is not necessary for the grant of a stay that special or exceptional circumstances be made out. It is sufficient that the applicants for the stay demonstrate a reason or an appropriate case to warrant the exercise of discretion in their favour; (b) second, the onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties; (c) third, the mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears; (d) fourth, the Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it; (e) fifth, where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay; and (f) sixth, although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them from making a preliminary assessment about whether the appellant has an arguable case. The Appeal Raises Arguable Grounds on a Preliminary Basis 1. There can be no doubt having regard to the contentions raised by the Class 1 appeal and the evidence of the applicants filed in this application, especially the expert acoustic evidence of Harper and NoiseNet, that the appeal is reasonably arguable having regard to the grounds articulated in the Statements of Facts and Contentions. This is especially so in the absence of any expert evidence by the Council as to the 'offensiveness' of the noise. As alluded to above, NoiseNet appears to have applied the wrong criteria in their two reports, namely, that of "nuisance". 2. The Council resisted this assertion by submitting that all that was required to be established was that an activity was being carried out by the applicants in "an environmentally unsatisfactory manner" insofar as it was not being "carried on by such practicable means as may be necessary to prevent, control or minimise…the emission of any noise" (s 95(c) of the POEOA). 3. While I do not need to decide this issue, the Council faces a hurdle in making this submission because this is not what is stated as the basis of the issuing of the prevention notice. The prevention notice was unequivocally issued because of a determination by the Council that the dogs were creating "offensive noise" (see section 1.11 of the notice). To now assert a different reason for the issuing of the prevention notice at this stage may be problematic. Ultimately, this will be a matter for resolution at the Class 1 appeal. 4. It is also not in dispute that no notice was given to the applicants that the Council intended to issue the prevention notice. Whether or not the Council was obliged to afford procedural fairness prior to the issuing of the notice will also be a matter for final determination in the Class 1 appeal. The Balance of Convenience Favours the Applicants 1. Having regard to the Council's own acoustic evidence and the unchallenged evidence of Harper, it cannot be concluded that, as the Council argued in its written submissions, the balance of convenience favours a refusal of the granting of the stay on the basis of "a clear, ongoing disturbance to the residents of the neighbouring property". 2. As stated above, whether there is a disturbance is not to the point. The question is whether the dogs cause "offensive noise" within the meaning of the POEOA. If it is ultimately found that they do not, then the prevention notice is amenable to be set aside. 3. Against this, however, is the uncontested evidence of the disturbance to the amenity of Johnston and her partner. It is not acceptable that the quiet enjoyment of their home is impinged upon by excessive noise from the greyhounds and that they are unable to sleep at night as a consequence. 4. Nevertheless, it is plain that the applicants have taken genuine and effective steps to mitigate the noise that the greyhounds make and that, as both Johnston and Dicker deposed, those measures have been effective. 5. Finally, it is important that the Court takes into account the welfare of the greyhounds, as advocated for by the applicants. Some of the conditions contained in the prevention notice, such as condition 2.6, are unreasonable, if not unacceptable, especially upon the advent of summer. The dogs are entitled to exercise and fresh air and cannot be kept confined for most of the day indoors, especially during warmer weather. To do so is arguably contrary to the Code of Practice. 6. In my view, the balance of convenience favours the applicants, but some accommodation must be given to the intrusion on the amenity of the neighbouring property, especially at night. The Stay Should be Ordered with Conditions 1. For these reasons, having regard to the above principles, I am of the opinion that the applicants have discharged their burden of proof and that the most appropriate course is to order a stay subject to conditions. This will ensure that most of the measures that the applicants have currently been implementing remain in place pending the outcome of the Class 1 appeal. 2. The parties anticipated the above conclusion and after some discussion provided the Court with a set of proposed conditions which are supportable on the evidence presently before it. I propose to grant the stay subject to these proposed agreed conditions. In my opinion, these conditions strike the appropriate balance between, on the one hand, the interests of the applicants and the welfare of the dogs, and on the other, the amenity of the adjoining neighbours. Orders 1. For the reasons given above, the orders of the Court are as follows: 1. the operation of the prevention notice issued on 21 July 2020 by the Council is stayed pending final determination of the Class 1 appeal filed by the applicants in this matter, on the following terms: 1. there shall be no more than nine greyhound dogs at the subject property; 2. the applicants shall use their best endeavours to rehome two of the nine greyhounds currently held on the subject property; 3. the applicants will provide a report to the respondent within seven days of the end of each calendar month concerning their efforts to rehome the two greyhounds referred to in (b), and the results of those efforts; 4. there shall be no more than three domestic dogs (which must not be greyhounds) held by the applicants on the subject property; 5. when on the subject property the greyhound dogs shall be kept in the kennel shed at all times except as follows: 1. from 5:00 am to 7:00 am on weekdays and from 6:00 am to 7:30 am on weekends, greyhounds in groups of not more than four may be taken to the day yards or other yards not closer to the Johnston house than the day yards (collectively referred to as "the yards") for not more than 10 minutes for the purpose of toileting ("morning toileting time"); 2. between 7:30 am and sunset, greyhounds may be exercised in groups of not more than four greyhounds outside the shed at any one time and for not more than 30 minutes each group: 1. two periods on leash; 2. two periods off leash in the yards; and 3. walked on leash for one swim in the dam in the south western corner of the subject property; 1. apart from ingress and egress, the door on the southern side of the kennel shed shall be kept closed at all times; 2. the door on the northern side of the kennel shed shall be kept closed except: 1. during the morning toileting time; and 2. between 7:00 am and sunset or if the maximum temperature for the day has exceeded 30 degrees celsius the door may remain open until 10:00 pm; 1. the applicants shall further enhance the acoustic treatment of the kennel shed by installing noise attenuators model CC025M below each roof ventilator in the part of the kennel shed in which greyhounds are housed, the work to be done by 24 December 2020; 1. liberty to restore on 48 hours' notice; 2. the matter is relisted before the Registrar for further directions on 1 February 2021; 3. the costs of the notice of motion are reserved; and 4. the exhibits are to be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 December 2020